Judicial Activism & the Yelp-ification of Voting?

Monday, July 26th, 2010 at 10:01 am

As someone who never travels without his pocket U.S. Constitution, I loved that yesterday’s New York Times forced me to revisit the two sections that deal with Judicial and Executive power — Articles III and II, respectively.

The article about judicial power was a detailed analysis of the first five years of the U.S. Supreme Court under John Roberts’ leadership. (Spoiler alert: it was really conservative). What interests me more, though, is the ongoing tension between the lofty principles of our common law system (in which our law evolves over time, thanks to the wisdom and restraint of judges who interpret it) and the reality of how those principles get played out in real time (i.e., to the victor go the spoils, stare decisis — or the rule that judges aren’t supposed to go against prior precedent — be damned).

Now that the Court’s makeup favors a conservative bent, the left is up in arms and crying foul. And yet this is exactly what happened a few generations ago, under the Earl Warren-led Court of the 1950s and 1960s. Indeed, under Warren’s leadership the left-leaning Court forged myriad new doctrines regarding civil rights and civil liberties and the very nature of the political system (Thank God!). And so, although I personally disagree with the direction this Court is taking us, I don’t see behavior that runs afoul of the Constitution. It’s an imperfect system, but you can’t only support judicial muscularity when it serves your own purposes. (On a related note, I have a new book coming out later this year on the First Amendment and how our understanding of it has evolved over time. Want to reserve an advance copy?)

Far more complicated was the recent New Yorker article about voting systems, and about how the U.S. lags behind other countries in its efforts to provide a fairer system. The antediluvian nature of our system will become even more pronounced when the stodgy old Brits, of all people, hold a May 2011 referendum on how Britain elects its leaders, likely resulting in an abandonment of the “first-past-the-post” system whereby whoever has the most votes wins. As the article points out, this sort of system only really makes sense if you always have two candidates. But anytime you have three or more, it’s a pretty lousy way to capture the true will of the people. And, not surprisingly, of democracies without any significant past era of British influence, only Nepal has chosen to elect its leaders this way.

As the article points out, the misbehavior of voting schemes in general has been known to social scientists since the mid-twentieth century. “That was when Kenneth Arrow, an economist at Stanford, examined a set of requirements that you’d think any reasonable voting system could satisfy, and proved that nothing can meet them all when there are more than two candidates. So designing elections is always a matter of choosing a lesser evil.”

So what should we do instead? Interestingly, one idea put forth is to rate our candidates the same way we rate restaurants or books online — by rating them across the range of a 4- or 5-point scale — and by using the 2000 election as an example of how it might work. “If a voter likes Nader best, and would rather have Gore than Bush, he or she can approve Nader and Gore but not Bush.” Both schemes give voters more options, and “would elect the candidate with the most over-all support, rather than the one preferred by the largest minority.”

I’m not saying I recommend this, but it’s an interesting idea, isn’t it? And just to provide some perspective, it’s not like changing how we vote in this country is a foreign concept. In fact, nearly one-fourth of our country’s total amendments to the Constitution (or 6 out of 27) have been about changing how we vote — and who can do it.

Which leads to a Monday trivia question — can you name the six voting-related amendments without looking? If you can (and we’re going strictly honor code here), I’ll send you a pocket Constitution of your very own. . .